(September 18, 1913.)

#### CLAUDE F. STUDEBAKER, Respondent, v. NORTHERN PACIFIC RAILWAY CO., a Corporation, Appellant.

[135 Pac. 850.]

Damages by Pike — Negligence—Sufficiency of Evidence — Instructions.

1. Evidence in tbe case examined and *held*sufficient to sustain the verdict.

2. *Meld,*that the court did not err in giving certain instructions and refusing to give others requested by the defendant.

3. The ease of *Miller v. Northern Pacific By. Co., ante,*p. 567, 135 Pae. '845, cited and approved.

*601APPEAL from the District Court of the Eighth Judicial District for Bonner County. Hon. Robt. N. Dunn, Judge.

Action to recover damages occasioned by forest fires. Judgment for the plaintiff.

*Affirmed.*

Geo. M. Perris, Edw. J. Cannon and James E. Babb, for Appellant.

B. S. Bennett, G. H. Martin and Davis & Asher, for Respondent.

For authorities cited by counsel on points decided, see *Miller v. Northern Pacific By. Co., ante,*p. 567.

SULLIVAN, J.

This action was brought by the respondent to recover damages for timber destroyed by fire, on behalf of himself and six other persons who assigned their claims for damages to him, making seven causes of action involved in the ease. The cause was tried by the court with a jury and resulted in a verdict in favor of the respondent on each of the seven causes of action, 'for substantially the amount demanded by the plaintiff, to wit, $3,317 and costs of suit. A motion for a nonsuit and directed verdict at the close of all the evidence in the case was denied by the court. Motions for judgment *non obstante veredicto*and for a new trial were made and denied. The appeal is from the judgment and from the order denying a new trial.

Numerous errors are assigned and at least six of them present the question of the sufficiency of the evidence to sustain the verdict.

(1) The ease of *Miller v. Northern Pacific Ry. Co., ante,*p. 567,135 Pac. 815, just decided by this court, is a companion case of the one at bar. The damages claimed in each case arose from the same fires, and it is stated by counsel for appellant, at page 1 of the brief, that “the testimony introduced in the court below is substantially the same as that introduced in the case of *O. B. Miller v. The Northern Pacific*
      *602
      *Railway Co.,*which suit is now pending in this court. ’ ’ This court held in the Miller case that the evidence was sufficient to support the verdict, and on an examination of the evidence in the case at bar, we are satisfied that it is sufficient to support the verdict in this case.

(2) Other assignments of error relate to the refusal of the court to give instructions Nos. 29 and 30 requested by the appellant, and to the giving of instruction No. 4.

Requested instructions Nos. 30 and 31 referred to in the Miller ease are identical with instructions Nos. 29 and 30, which were requested and refused by the court in the action at bar. What was said in the Miller case in regard to those instructions is applicable to said instructions Nos. 29 and 30 in this case.

In regard to instruction No. 4 in the ease at bar, it is the same as instruction No. 14 given by the court in the Miller case, and in that ease it was held that the giving of said instruction was not error.

The giving of certain other instructions was assigned as error, but on an examination of said instructions and all of the evidence in the ease, we are satisfied that the court did not err in giving them.

We therefore conclude that the evidence is sufficient to sustain the verdict and that under the authority of *Miller v. Northern Pacific Ry. Co., supra,*the judgment of the court must be affirmed, and it is so ordered, with costs in favor of respondent.

Ailshie, C. J., and Stewart, J., concur.